In Saadati v Moorhead, released June 2,
2017, the Supreme Court of Canada (the "Court") restates and
clarifies the test from Mustapha v
Culligan of Canada Ltd for proving the existence of a compensable mental
injury1. The Court confirms that there is no requirement to
demonstrate a "recognizable psychiatric illness" supported by expert
opinion.2

In Saadati, the plaintiff had
been in a series of five motor vehicle collisions and alleged that the second
accident caused mental injury. At trial (2014 BCSC 1365), the trial judge found
that the second accident had caused "psychological injuries, including
personality change and cognitive difficulties." Significantly, this
finding did not rest upon a medical diagnosis or expert evidence. Instead the
trial judge relied on testimony from the plaintiff's friends and family as to
his change in behaviour after his accident.

On appeal (2015
BCCA 393), the Court of Appeal for British Columbia set aside the order of the
trial judge and dismissed the action, holding that the law required that the
plaintiff show a recognizable psychiatric illness and that "absent expert
medical opinion evidence, a judge is not qualified to say what is, or is not,
an illness." This statement of the law has been true for other Canadian
jurisdictions.

The Supreme
Court of Canada restored the decision of the trial judge, holding that "a
finding of legally compensable mental injury need not rest, in whole or in
part, on the claimant proving a recognized psychiatric illness." A
plaintiff can establish a mental injury based on non-expert evidence that they
have suffered from a serious and prolonged disturbance.

Criticisms
of the "Recognizable Psychiatric Illness" Threshold

The Court's
key criticism of the requirement of a "recognizable psychiatric
illness" was that there was no necessary relationship between a
compensable mental injury and a diagnostic classification scheme. The
application of diagnostic tools and categorization of mental injuries are not necessarily
objective or static — "psychiatric diagnoses... can sometimes be
controversial even among treating practitioners" and "labels that
were at one time widely accepted may become obsolete." Rather than
focusing upon a specific diagnostic label, the Court held that a trier of fact
should focus upon the level of harm a plaintiff's symptoms represent.

Further, the
Court does not view the recognizable psychiatric illness threshold as necessary
to prevent indeterminable liability. A "robust application" of the
elements of a cause of action in negligence should be sufficient to address
these concerns. The Court explains that liability for mental injury is to be
confined to claims satisfying proximity within the duty of care analysis
(relationship between parties) and remoteness of the damage (proximity between
the harm and the wrongful conduct).

Finally, the
Court recognizes that requiring plaintiffs to demonstrate a "recognizable
psychiatric illness" for mental injury is in contrast with a lack of any
such requirement for plaintiffs claiming physical injuries. To do so would
provide less protection to victims of mental injury "for no principled
reason".

Proving
Mental Injury

The Court's
decision clarifies that the law as stated in Mustapha
continues to be the law in Canada. For a mental injury to be compensable, a
plaintiff must suffer an injury which is "serious and prolonged and rise
above the ordinary annoyances, anxieties and fears that people living in
society routinely, if sometimes reluctantly, accept." It should be
noted that despite the Court's interest in providing a similar process for
establishing mental and physical injuries, physical injuries need not rise to
the same "serious and prolonged" threshold as mental injuries to be
compensable.

Where a
psychiatric diagnosis is unavailable, a trier of fact can now rely on other
evidence adduced by a plaintiff to find a mental injury.

Expert
evidence will continue to remain relevant in the context of claims for mental
injury. Although expert evidence will no longer be required, it will continue to be of assistance
to triers of fact in determining whether a mental injury has been demonstrated.
Relevant considerations that could be assisted by expert evidence include the
seriousness of impairments to cognitive functions and participation in daily
activities, the length of impairment, and the nature and effect of any
treatment. Where plaintiffs do not offer relevant expert evidence to assist a
trier of fact in reviewing these and any other relevant considerations,
"they run a risk of being found to have fallen short".

Expert
evidence will remain relevant to defendants who disagree with a plaintiff's
claim of mental injury. "[I]t remains open to the defendant, in rebutting
a claim, to call expert evidence establishing that the accident cannot have
caused any mental injury, or at least any mental injury known to
psychiatry". Although a lack of a recognized diagnosis is no longer a bar
to recovery, "it is something that the trier of fact can choose to weigh
against any evidence supporting the existence of a mental injury".

Practice
Tips

It is open to a
plaintiff to establish a compensable mental injury based on non-expert
evidence that establishes a serious and prolonged injury;

Demonstrating a
"recognizable psychiatric illness", supported by expert
evidence, is no longer a threshold requirement for demonstrating a
compensable mental injury;

Expert evidence,
although not strictly required, will continue to play a role in proving or
disproving mental injuries; and

A plaintiff need
not show that their mental injury falls within a category of a recognized
psychiatric illness, but the lack of a diagnosis is something a trier of
fact can weigh against evidence supporting a mental injury.

1 Sometimes also
referred to as "nervous shock", "psychological injury",
"psychological illness", "psychiatric damages",
"psychiatric injury" or "psychiatric illness". A discussion
of this varied terminology can be found at paragraph 1 of the Court's decision.

2 The Court also
addresses the specificity required in pleadings to ground a claim for mental
injury, suggesting that broad heads of damage alleged in pleadings may be sufficient.
The Court's analysis of this issue can be found at paragraphs 9-12 of its
decision.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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